Supreme Court to Revisit 'First-Sale' Copyright Doctrine

http://www.wired.com/threatlevel/2012/04/scotus-first-sale-revisted/

by sakai • 14 years ago

21 5 14 years ago

This is another attempt at segmenting a market for goods depending on the price that can be extracted for that good in a particular market, while keeping the cheap versions from being marketable in countries with higher discretionary income. Somewhat similar to DVD region codes, except applied to books.

Publishers sell (or sell rights to sell) lower-quality texts abroad because they can make a profit. Then they get pissy when people resell those international editions in the U.S.

The market says that people want cheaper books and they don't care about colors or paper quality. Textbooks often end up mauled after a semester anyway. Publishers don't listen, people try to fill the void, and they get sued.

"While the written content of books for the domestic and international markets is often similar or identical, books intended for international markets can differ from the domestic version in design, supplemental content (such as accompanying CD–ROMS), and the type and quality of materials used for printing, including “thinner paper and different bindings, different cover and jacket designs, fewer internal ink colors, if any, [and] lower quality photographs and graphics." (from background in the 2nd circuit ruling)

http://caselaw.findlaw.com/us-2nd-circuit/1577369.html

Natsu• 14 years ago

The Supreme Court reverses cases it gets more often than not. But here, there's already a circuit split. And the last case of its kind was a 4-4 split, so if you're in to reading tea leaves, this is a toss-up. But this time I don't think that Kagan will recuse herself and I don't think that having argued the government's side in the previous case says anything about her personal beliefs on the matter.

In the Costco case, the problem was that the copy had to be "lawfully made under this title." With "this title" referring to US law, foreign copies need not apply. But that's kind of a silly technicality for the case to turn upon and a poor reading of the phrase. It's not as though international copies are being unlawfully made, after all. There's also the Berne copyright convention that applies pretty much everywhere, not to mention all the other agreements (including ACTA), and the direct influence the US exerts via the USTR and diplomatic pressure. Just look at Spain, for example, and how their copyright laws were forcibly influenced by the US. And they're far from being the only example.

But it may just come down to whether the justices think that the copyright holder is being ripped off via cheap imports, or whether US citizens are being ripped off by publishers. For the more legally inclined, Patently-O has a good writeup. Incidentally, I seem to recall hearing that at least one of the sitting justices reads it.

http://www.patentlyo.com/patent/2012/04/supreme-court-to-hea...

EDIT: I found this posted at Patently-O. It's a good analysis of the harm that limiting copyright exhaustion to US-manufactured works would cause:

http://acrlog.org/2011/08/30/nothing-right-about-this-copyri...

erichocean• 14 years ago

To be clear: a private student imported eight used textbooks (legally purchased abroad, and legally manufactured abroad), re-sold them here in the United States, and got fined $600,000 for "damages".

The $600,000 fine was upheld on appeal.

It seems like we may have lost the thread as a country if this is indeed the result we think is just, fair or reasonable.

junto• 14 years ago

In the ideal capitalist's world second hand sales would be banned completely, forcing people to always buy new.

It is pretty hard to attack the first-sale copyright doctrine head on, but you can go after the edge cases. Slowly but surely you eat away at the fair use concepts until there is nothing left.

We are seeing a massive shift in the concept of copyright and ownership. The next twenty to fifty years are going to be very interesting as more and more content becomes digitized.

Can I resell that e-book that I have already read and has been sitting on my virtual shelf for over a year? Um, no. Dream on...

The actual first-sale doctrine is already null and void when it comes to digital content. The media companies must be pissing themselves laughing, whilst still charging the same price as they used to do for physical copies, the customer is prevented from reselling that digital item.

dexen• 14 years ago

In the ideal capitalist's world the state does not intervene into the market; only the market forces and agreements between market players shape prices and availability.

Note this case is not based on any agreement between publisher and the student; instead the state is asked to prosecute him based on social contract (copyright laws). Which social contract, as far as we can tell, is not result of free market trade.

Supreme Court to Revisit 'First-Sale' Copyright Doctrine

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